MISC 10-427629

July 28, 2010

ESSEX, ss.

Trombly, J.


This action was commenced by Americo F. Jorge, individually and as Executor of the Estate of Jose Defreitas (“Plaintiff” or “the Estate”) on April 20, 2010, seeking to rescind a deed dated July 14, 2005 by which Jose Defreitas and his now deceased wife purported to convey their home in Methuen to Fernanda Alexandre (“Defendant”). Plaintiff contends that Defreitas and his wife, neither of whom spoke English, were the victims of fraud and did not realize the consequences of the deed they signed.

A previous action was filed by Jose Defreitas in Essex County Superior Court against the same Defendant on February 22, 2008, seeking to rescind the same deed. That action was dismissed for failure to prosecute on May 14, 2009, after Counsel for Mr. Defreitas failed to attend a status conference. Mr. Defreitas passed away in February of 2009, and his Estate moved to vacate the order of dismissal on December 24, 2009. On January 19, 2010, the Court (Feeley, J.) denied Plaintiff’s motion and dismissed the case with prejudice. On January 28, 2010, the Estate filed a Motion to Reconsider Denial of the Motion for Relief from Judgment. This motion was denied by the Court (Feeley, J.) on February 12, 2010. The present case was filed in Land Court on April 20, 2010.

This case comes before the court at this time on Defendant’s Motion to Dismiss, filed June 4, 2010 with a supporting Memorandum, Affidavit, and exhibits. Defendant seeks dismissal of the present action on grounds that it is barred under the doctrine of res judicata because of the Superior Court dismissal.

Plaintiff filed his Opposition to Defendant’s Motion to Dismiss on July 12, 2010, arguing that res judicata does not bar this action because there is no privity of parties, and also because a final judgment on the merits was never entered. The motion was argued and taken under advisement on July 15, 2010.

A Decision was entered today granting Defendant’s Motion to Dismiss on the grounds that Plaintiff is barred from his claim by res judicata. In accordance with that Decision, it is hereby:

ADJUDGED and ORDERED that the Defendant’s Motion to Dismiss is GRANTED;

ADJUDGED and ORDERED that this case be DISMISSED;

By the Court (Trombly, J.)


[Note 1] If not specifically defined herein, each term carries the same definition employed in the Decision.